Thanks to the 2016 Water Infrastructure Improvements for the Nation (WIIN) Act, a state may apply to the EPA to operate its own permit program for regulating coal combustion residuals (CCRs). In a recent letter to governors, EPA Administrator Scott Pruitt explained that the Agency is developing guidance on what such an application should contain and how the Agency expects to review and approve it.
Equivalent Protection
Section 2301 of the WIIN Act indicates that any state that submits an application to run a CCR permitting program must receive EPA’s approval as long as the state program provides protection that is at least equivalent to what is achieved under the federal criteria contained in 40 CFR part 257. The WIIN Act does not require that states have their own CCR permitting program; should a state choose not to have such a program, the EPA is authorized to take over permitting. Furthermore, the WIIN Act empowers the Agency to withdraw approval of any permitting program that is failing to meet the federal criteria.
All this was intended to correct problems associated with EPA’s December 2014 final rule that established RCRA Subtitle D regulations for the disposal of CCRs from coal-fired power plants. Subtitle D most commonly applies to the regulation of municipal solid waste landfills (i.e., it is not a hazardous waste program), and the CCR rule mirrors those regulations. The major drawback of the CCR rule is that Subtitle D requirements are self-implementing; that is, a facility must comply with them without any action by a regulatory agency. In addition to having no formal role in implementation, the EPA is not empowered to enforce requirements. Thus, enforcement of these requirements can only be by citizen suits (or by states acting as citizens).
This changed under the WIIN Act, which provided states with the primary implementation and enforcement authority for violations of Subtitle D regulations at CCR disposal impoundments.
States Encouraged to Apply
According to Pruitt, Section 2301 reflects federalism, or the proper constitutional relationship between the federal government and the states, which, Pruitt continually insists, are the frontline regulators of environmental protection.
“I know that some states have already discussed with EPA how they manage CCR, and I encourage you to continue those efforts and work with EPA to submit your program applications for approval in a timely manner,” Pruitt wrote in his letter to governors. “If you have not done so, I encourage you to evaluate developing a CCR permit program and submitting it to EPA for authorization.”
Pruitt adds that the Agency discussed plans for draft guidance with a number of state environmental directors at the Environmental Council of the States on April 7, 2017. The EPA informed the directors that the Agency has started developing guidance that in lieu of the national standards will allow flexibility in individual permits so that states can make decisions on what works best for their environment.
Pruitt’s letter is here.